On Sat, Mar 26, 2011 at 5:13 PM, John Levine <johnl@iecc.com> wrote:

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If the creation of .xxx is a preliminary step in making the fact of your web site only being accessible by a name ending in .xxx an affirmative defense against a charge of allowing minors to access your site then

A charge of what?  ICM and .XXX are headquartered in Florida.  Could you give some examples of the laws you're referring to

US Code TITLE 18 > PART I > CHAPTER 71 > § 1470 http://www.law.cornell.edu/uscode/18/usc_sec_18_00001470----000-.html

, and cases where people have been convicted under them?

Regards, Bill Herrin -- William D. Herrin ................ herrin@dirtside.com  bill@herrin.us 3005 Crane Dr. ...................... Web: <http://bill.herrin.us/> Falls Church, VA 22042-3004

On Sat, Mar 26, 2011 at 5:43 PM, John R. Levine <johnl@iecc.com> wrote:

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US Code TITLE 18 > PART I > CHAPTER 71 > § 1470 http://www.law.cornell.edu/uscode/18/usc_sec_18_00001470----000-.html

That law includes the phrase "knowing that such other individual has not attained the age of 16 years."  That's why porn sites have a home page that asks you how old you are.

In court, willful negligence is generally the same thing as knowing.

As far as I can tell from looking for case law, all the 1470 cases are basically child molestation cases where the 1470 count was piled on in addition to the real charges, unrelated to kids looking for porn sites.

It gets messy because obscenity hinges on local community standards. But that's the rub -- as a porn purveyor you can't know what the community standards are in the user's community. Not many examples of web sites being taken to task for web content, not yet, but lots of examples of mail-order porn owners having a really bad year year, legally speaking.

So, in short, there's no problem for .XXX to solve.

Suppose, just for the sake of the argument, that a statute or precedent came about to the effect that a community which permits access to .xxx sites (by not censoring the DNS) implicitly accepts "that kind of thing" isn't obscenity under local law. Further, suppose its found that the individual in such communities circumventing the technical safeguards in place to censor his access to .xxx is solely liable for such access, that the porn purveyor is -presumed- to have a reasonable belief that said individual's activity was lawful... merely because they access the site using the .xxx extension. Suppose, in other words, it comes to be that an internet porn purveyor is protected from local community standards for obscenity so he need only worry about staying away from stuff that's illegal in his own back yard. Where the prosecution has to support a claim that the site is accessible other than through the .xxx name in order to survive an early motion to dismiss. -Bill -- William D. Herrin ................ herrin@dirtside.com  bill@herrin.us 3005 Crane Dr. ...................... Web: <http://bill.herrin.us/> Falls Church, VA 22042-3004

On Mar 26, 2011, at 6:31 PM, John Levine wrote:

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Suppose, just for the sake of the argument, that a statute or precedent came about to the effect that a community which permits access to .xxx sites (by not censoring the DNS) implicitly accepts "that kind of thing" isn't obscenity under local law.

If we're doing counterfactuals, let's suppose that everyone in the world thinks that .XXX is a great idea, and ICANN runs itself efficiently on a budget of $1M/yr.

For some reason the aerodynamics of pigs comes to mind here. Having pigs fly is just about as likely as having ambitious Southern prosecutors give up the ability to bring meaningless, but newsworthy, porn prosecutions, ICANN's new TLD or no. Regards Marshall

R's, John

-----Original Message----- From: Eric Brunner-Williams [mailto:brunner@nic-naa.net] Sent: Saturday, March 26, 2011 7:24 PM

ICM retained competent counsel for the ICANN issue advocacy. I expect Stuart will retain competent counsel for the follow-on issues.

Yes, it is certain that Stuart will retain competent counsel for all follow-on issues, I mean, the guy bragged to Bloomberg that ICM is set to make at least $200 million a year through these registrations (believe me, if I were in his position, I'd have the best lawyers money could buy). That doesn't even touch the $3-4 Billion in porn transactions ICM is hoping to process and get a cut of once they launch their payment processing service. What changed ICANN's mind between the ruling in 2007 and the ruling in 2010? ICM brings in an independent arbitrator and ICANN agrees to go along with the findings, yet for the life of me I can't find any majority who believe this was necessary. The ACLU objects because of censorship issues. Family and religious groups oppose because they believe .xxx legitimizes porn. Heck, even the porn industry itself opposes because it will increase operating costs and open the industry to more regulation. I can't seem to find anyone that would benefit from this, with the exception of Stuart and ICM's shareholders. Stefan Fouant

What changed ICANN's mind between the ruling in 2007 and the ruling in 2010?

The growing certainty of an expensive and very embarassing lawsuit if they turned ICM down. Despite the clear lack of industry support for .XXX, ICM carefully jumped through every hoop, dotted every i, and crossed every t in the 2004 application process and the subsequent appeal and review processes. I expect the board and staff really really would not want to have to answer questions under oath like "who did you talk to at the US Department of Commerce about the .XXX application and what did you say?" and "why did you vote against .XXX when they followed the same rules as the TLDs you voted for?" R's, John

Two comments from two commenters:

I can't seem to find anyone that would benefit from this, with the exception of Stuart and ICM's shareholders.

... I expect the board and staff really really would not want to have to answer questions under oath like "who did you talk to at the US Department of Commerce about the .XXX application and what did you say?" and "why did you vote against .XXX when they followed the same rules as the TLDs you voted for?"

The first assumes that a beneficiary should exist that is distinct from the applicant-sponsor. In the case of .aero, SITA itself ceased to exist in the form it existed at the time of application. At that time it was a non-profit cooperative "open to anyone operating aircraft for the transport of passengers, mail or cargo and to other organisations whose primary business is in the air transport industry", having 728 members in 2003, 581 of which were airlines. It is now an IT shop. The beneficiaries of the existence of .aero may be limited to Afilias and the entity known by the initials "SITA", independent of how competent the mission of .aero is executed. In the case of .travel, a 2004 round sTLD applicant ICANN approved, a post-delegation reorganization took place resulting in significant bulk sales of no observable connection to the travel industry. This situation has not drawn formal attention from ICANN for contractual compliance reasons. In the case of .jobs, also a 2004 round sTLD applicant ICANN approved, a similar situation has drawn formal attention from ICANN for contractual compliance reasons. In sum, the absence of beneficiaries other than the applicant or its successor in interest, and the registry services platform operator, for sponsored registries approved in the 2000 and 2004 new gTLD rounds is not an exceptional condition. Neither is it a universal condition, as .cat, .coop, .museum, clearly serve the beneficiaries claimed in their respective applications, and are non-profits operating in the public interest. The second assumes the principle liability that exists is specific to a single application. While possible, this fails to place a controversy in its complete context, and assumes an implied pattern of conduct by an agency of government at a point in time reflects a continuous primary issue of that agency. The Bush-Cheney Administration's lack of commitment to accountability and transparency is a matter of record, or gaps in the record, to make the obvious pun. Yet accountability and transparency have been required to implement in the transition from a MoU to a subsequent relationship between a private corporation and the Department of Commerce. The current Administration's public comments began with Deputy Assistant Secretary Anna Gomez' observation that there is "no statutory authority", and continues to Secretary Larry Strickland's observation at Silicon Flatirons that accountability and transparency must be acted upon by June of this year.[1] The liability, only in theory, untested as yet, whether the specific liability cited above, or a general liability, may include whether ICANN is exercising delegated rule making and is therefore subject to the Administrative Procedures Act of 1946, as are other 501(c)(3)s to which an agency of government has delegated rule making. Well, that's enough for a Sunday morning sermon on the beneficiaries of sTLDs, whether pew safe or not, and the cloud of liabilities that surround a corporation that manages a contract originally between the Department of Defense and SRI International. Eric [1] http://www.ntia.doc.gov/presentations/2011/siliconflatirons_02142011.html

On 3/27/11 2:35 PM, John Levine wrote:

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...

... I expect the board and staff really really would not want to have to answer questions under oath like "who did you talk to at the US Department of Commerce about the .XXX application and what did you say?" and "why did you vote against .XXX when they followed the same rules as the TLDs you voted for?"

The first assumes that a beneficiary should exist that is distinct from the applicant-sponsor.

On the contrary. Since it is clear that all of the other sTLDs have failed to attract the predicted support from their nominal communities, why should a similar lack of support for .XXX make any difference?

First, you (John Levine) are free to interpret the comments of Stephen Fouant (the author of the first comment) any way you please, his statement (below) suggested to me that he expected to find a beneficiary other than the applicant (consistent with rfc1591 aka ICP-1), and he did not also assert that beneficiaries other than the applicant do not exist for all other sTLD applicants, or perhaps all other gTLD operators.

...

I can't seem to find anyone that would benefit from this, with the exception of Stuart and ICM's shareholders.

However, you're free to assert the contrary, though to what is unclear to me. Next, on what basis do you make the claim that .coop and .cat have failed to attract the predicted support from their nominal communities?

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The second assumes the principle liability that exists is specific to a single application.

While possible, this fails to place a controversy in its complete context, and assumes an implied pattern of conduct by an agency of government at a point in time reflects a continuous primary issue of that agency.

Heck no. I expect that were a case to bring documents to light, they would show that what ICANN said to the US government was at odds with what they were saying in public. I know none of us would find that at all surprising, but we're not a judge looking at the contracts.

I don't think you caught the sense of my point that the transparency and accountability issue may transcend any specific case or controversy, however, as I pointed out, all theories of ICANN liability wait for a first test, and so are all equally hypothetical. Eric

On 3/27/11 4:36 PM, John Levine wrote:

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Next, on what basis do you make the claim that .coop and .cat have failed to attract the predicted support from their nominal communities?

Arithmetic, mostly. There are 40,000 co-ops in the United States, 160,000 in Europe, and apparently several million world-wide, yet there are only 6700 domains in .COOP. I would find it hard to say that under 3% takeup was significant support.

Do you attach any significance to the restriction that the .coop operator has to use non-cooperatives as sales channels and the primary means of relations with cooperatives as registrants? I do, I thought we had an initial exemption from the registrar requirement at the Montevideo meeting, for .museum and for .coop. Additionally, do you attach any significance to the absence of a restriction on the incumbent monopoly operator from accepting or retaining registrations from cooperatives? Note, that cooperatives with registrations in the legacy monopoly name spaces could be, but are not, accounted for revenue purposes, as .coop registrants.

The population of Catalonia is about the same as that of Switzerland or Hong Kong. There are 47,000 domains in .CAT, over 200,000 in .HK, and about two million in .CH. Of those 47,000, about 7,000 have DNS on Nominalia's servers, and spot checking suggests most of those are parked.

The Nominalia issue is one registrar. The .cat name space has been available for only 5 years, the .hk and .ch name spaces since 1986. The rate of growth for .cat has been 10k/yr for each of five years, and assuming no changes, will reach the relative densities of western European national name spaces. Given our difference in perspectives, and values, I'll stop now. Eric

On 3/27/11 5:50 PM, John R. Levine wrote:

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...

Arithmetic, mostly. There are 40,000 co-ops in the United States, 160,000 in Europe, and apparently several million world-wide, yet there are only 6700 domains in .COOP. I would find it hard to say that under 3% takeup was significant support.

Do you attach any significance to the restriction that the .coop operator has to use non-cooperatives as sales channels and the primary means of relations with cooperatives as registrants?

No. They knew about that when they applied.

You are mistaken. This was a lively subject of negotiation involving Louis Touton and the parties. I was involved as well. There was real shock when Louis came back from the Registrar Constituency with the message that rather than the initial registrar-free budget of initial registrations, the working number was _0_.

The application for .COOP is archived on the ICANN web site. They predicted with "90% confidence" that they'd have over 100,000 registrations within four years and with "50% confidence" that they'd have 300,000 registrations. They failed.

See above.

...

Note, that cooperatives with registrations in the legacy monopoly name spaces could be, but are not, accounted for revenue purposes, as .coop registrants.

Hmmn, counting people who've decided not to use .COOP as indications of support for .COOP. That's very creative. You sure you don't work for ICANN?

In 2007 I consulted for the IANA function, writing some perl code to process the RT queues and generate reports for the IETF, but otherwise, no. Again, communicating is elusive. Verisign, Afilias, NeuStar and CORE all operate more than a single registry. The original SRS proposal by Kent Crispen, Dave Crocker, Roberto Gateano, and Sylvan Langenbach placed the locus of competition in the registry function. The choice to place the locus of competition in the registrar function does not prevent ICANN from revisiting that choice. The distinction between a registry as a contractual entity, and one or more back end operators, allows a registry to have a registrant as a revenue source, and a party back end operator, not necessarily the same corporate entity or an affiliate of the registry to have the same registrant as a revenue source. Just as Verisign was required to participate in the redelegation of .org, Verisign could be required to revenue share for registries its market power harms, in this case, a registry created for cooperatives.

...

The Nominalia issue is one registrar. The .cat name space has been available for only 5 years, the .hk and .ch name spaces since 1986. The rate of growth for .cat has been 10k/yr for each of five years, and assuming no changes, will reach the relative densities of western European national name spaces.

Actually, if you look at the registry reports, there was a burst of about 18,000 domains in .CAT the first year, the annual growth rate has been considerably less than 10K/yr and it is if anything slowing down. From the Nov 10 report, the most recent one ICANN has published, to today, the growth is about 1000, which extrapolates to under 3500/yr, so it'll catch up with the nearby ccTLDs several centuries from now, if ever. I can't find the business plan of the .CAT application on ICANN's web site, but I'd be pretty surprised if it predicted numbers anywhere near that low.

I'll ask Nacho or Jordi tomorrow morning to comment. You could be right. Eric

John Levine <johnl@iecc.com> wrote:

I suppose one could argue in both cases that the existence of any registrations at all shows "support", in which case .MUSEUM is a rousing success, too.

My favourite sTLD from the 2004 round is .post Tony. -- f.anthony.n.finch <dot@dotat.at> http://dotat.at/ Rockall, Malin, Hebrides, Bailey: Mainly southerly or southeasterly, veering westerly later in south Rockall, 4 or 5, increasing 6 at times. Moderate or rough. Rain or showers, fog patches in Rockall and Malin. Moderate or good, occasionally very poor in Rockall and Malin.

See http://www.rfc-editor.org/rfc/rfc3675.txt. Thanks, Donald =============================  Donald E. Eastlake 3rd   +1-508-333-2270 (cell)  155 Beaver Street  Milford, MA 01757 USA  d3e3e3@gmail.com On Sat, Mar 26, 2011 at 6:21 PM, William Herrin <bill@herrin.us> wrote:

On Sat, Mar 26, 2011 at 5:43 PM, John R. Levine <johnl@iecc.com> wrote:

...

...

US Code TITLE 18 > PART I > CHAPTER 71 > § 1470 http://www.law.cornell.edu/uscode/18/usc_sec_18_00001470----000-.html

That law includes the phrase "knowing that such other individual has not attained the age of 16 years."  That's why porn sites have a home page that asks you how old you are.

In court, willful negligence is generally the same thing as knowing.

...

As far as I can tell from looking for case law, all the 1470 cases are basically child molestation cases where the 1470 count was piled on in addition to the real charges, unrelated to kids looking for porn sites.

It gets messy because obscenity hinges on local community standards. But that's the rub -- as a porn purveyor  you can't know what the community standards are in the user's community. Not many examples of web sites being taken to task for web content, not yet, but lots of examples of mail-order porn owners having a really bad year year, legally speaking.

...

So, in short, there's no problem for .XXX to solve.

Suppose, just for the sake of the argument, that a statute or precedent came about to the effect that a community which permits access to .xxx sites (by not censoring the DNS) implicitly accepts "that kind of thing" isn't obscenity under local law. Further, suppose its found that the individual in such communities circumventing the technical safeguards in place to censor his access to .xxx is solely liable for such access, that the porn purveyor is -presumed- to have a reasonable belief that said individual's activity was lawful... merely because they access the site using the .xxx extension.

Suppose, in other words, it comes to be that an internet porn purveyor is protected from local community standards for obscenity so he need only worry about staying away from stuff that's illegal in his own back yard. Where the prosecution has to support a claim that the site is accessible other than through the .xxx name in order to survive an early motion to dismiss.

-Bill

-- William D. Herrin ................ herrin@dirtside.com  bill@herrin.us 3005 Crane Dr. ...................... Web: <http://bill.herrin.us/> Falls Church, VA 22042-3004

On Sat, Mar 26, 2011 at 1:55 PM, William Herrin <bill@herrin.us> wrote:

If the creation of .xxx is a preliminary step in making the fact of your web site only being accessible by a name ending in .xxx an affirmative defense against a charge of allowing minors to access your site then

But do you really believe playboy are going to give up playboy.com? Or that new websites are going to register an address that will result in their website not being visible by 1/6th of the worlds population ( http://uk.ibtimes.com/articles/127009/20110325/india-blocks-xxx-domain.htm - and we all know China and several other countries won't be far behind so we're probably talking closer to half or more of the worlds population). At first glance this might sounds like a good idea, but do you know any *.travel or *.asia (etc) websites that don't also have the equivalent or similar .com version? Nobody uses these domains as their only domain, it's just yet another one that they will register - and yet more money they need to pay to the registries each year to protect their brand. Scott.

On Mar 26, 2011, at 5:28 PM, George Bonser wrote:

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But do you really believe playboy are going to give up playboy.com?

They aren't going to give up Playboy.com but they are probably going to have to purchase playboy.xxx anyway.

What bothers me is that most companies are now going to be forced to purchase .xxx domains simply to keep someone else from buying it and sullying the company's image. So it is an instant cash windfall for the domain registrars.

There was no reason why we needed this.

But that is an excellent reason why someone would want it. I was involved in the IETF NEWDOM WG way back in ~1996 and heard all of these arguments then. IMHO this was snake oil 15 years ago, and it is even more snake oil now. Regards Marshall

Subject: RE: ICANN approves .XXX red-light district for the Internet Date: Sat, Mar 26, 2011 at 10:07:08PM -0400 Quoting Stefan Fouant (sfouant@shortestpathfirst.net):

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From: Marshall Eubanks [mailto:tme@americafree.tv]

...

even more snake oil now.

And I'm afraid we'll be seeing a whole heckuva lot more of this snake oil once ICANN finalizes the Generic TLD process in June:

The only possible thing that could save anyone with a valuable meatspace (tm) from having to buy its string representation in all the new TLDen is to make TLDen ubiquitous to a degree where the TLD can't be assumed anymore. A root zone with several thousand TLDen is no technical problem. I wonder when the effect kicks in. If it does. A positive side-effect would be to enable the altroot kooks to buy a TLD (.altroot -- under which they can run their own mini-Internets) of their own, which would disable some, if not all of them. -- Måns Nilsson primary/secondary/besserwisser/machina MN-1334-RIPE +46 705 989668 An Italian is COMBING his hair in suburban DES MOINES!

On Tue, 29 Mar 2011 16:25:35 BST, Tony Finch said:

George Bonser <gbonser@seven.com> wrote:

...

What bothers me is that most companies are now going to be forced to purchase .xxx domains simply to keep someone else from buying it and sullying the company's image.

Who is forcing them?

Do a 'whois ibm.biz', 'ibm.info', 'ibm.org', or 'ibm.us' ('ibm.net' appears to be slightly different) and ask yourself why those registrations exist. The only reason they exist is so that IBM can stick this in the DNS: ibm.info. 86400 IN TXT "Visit www.ibm.com for information about IBM products and services" ibm.info. 86400 IN TXT "v=spf1 mx/24 -all" ibm.info. 86400 IN MX 100 ns.watson.ibm.com. ibm.info. 86400 IN SOA ns.watson.ibm.com. dnsadm.us.ibm.com. 2010073000 21600 3600 1209600 86400 ibm.info. 86400 IN A 129.42.38.1 ibm.info. 86400 IN NS ns.watson.ibm.com. ibm.info. 86400 IN NS ns.almaden.ibm.com. 1.38.42.129.in-addr.arpa. 28800 IN PTR redirect.www.ibm.com. So some miscreant can't register 'ibm.biz' for themselves for lulz and profit. You don't think miscreants would do that? Might want to look into the checkered past of 'whitehouse.com' sometime.

On 3/29/11 9:32 AM, Marshall Eubanks wrote:

On Mar 29, 2011, at 11:25 AM, Tony Finch wrote:

...

George Bonser <gbonser@seven.com> wrote:

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What bothers me is that most companies are now going to be forced to purchase .xxx domains simply to keep someone else from buying it and sullying the company's image.

Who is forcing them?

Their lawyers.

given that domain registration is cheaper than billable hours I don't see the problem.

Regards Marshall

...

Tony. -- f.anthony.n.finch <dot@dotat.at> http://dotat.at/ Shannon: Southerly, veering westerly at times, 4 or 5, increasing 6 or 7 at times. Moderate or rough. Rain or showers, fog patches. Good, occasionally very poor.

Or http://www.budget.co.ck/ .. On 3/30/11 3:25 , "Tony Finch" <dot@dotat.at> wrote:

George Bonser <gbonser@seven.com> wrote:

...

What bothers me is that most companies are now going to be forced to purchase .xxx domains simply to keep someone else from buying it and sullying the company's image.

Who is forcing them?